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Updating Your Employee Handbook in 2014

By Marc L. Fleischauer of Coolidge Wall Co., L.P.A. posted in Business Law on Wednesday, March 19, 2014.

Has it been more than a year or two since you reviewed and revised your company's employee handbook? If so, now may be a good time to do so. The following are a few policies on which you may want to concentrate in light of recent employment law developments:

Healthcare and benefit policies. Given the U.S. Supreme Court's recent decision in U.S. v. Windsor and subsequent guidance from the IRS and the U.S. Department of Labor ("DOL"), employers need to update their retirement and healthcare plans even if the employers are located in a state whose laws do not permit or recognize same-sex marriages. For example, policies will need to be revised to reflect the recent IRS ruling that employees who pay for their spouse's health insurance on an after-tax basis may treat these costs as excludable from federal income taxes even if they live in a state that does not recognize their marriage. Also, in the wake of the Affordable Care Act, employers need to examine their definitions of "full-time" employee for the purpose of determining eligibility for benefits.

Family and medical leave policies. The DOL issued final rules based on 2009 amendments, which became effective March 8, 2013. The new regulations mainly relate to military caregiver leave for a veteran, qualifying exigency leave for parental care, and job-protected leave for airline personnel and flight crews. FMLA policies must be brought up to date accordingly.

Break policies. Amendments to the Fair Labor Standards Act require employers to provide "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." Employers are also required to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.

Social media policies. The National Labor Relations Board's ("NLRB") General Counsel has issued a series of opinions in which the NLRB found that employers' social media policies were too restrictive, especially those that prohibited employees from posting electronic messages that damage the employer's reputation. According to the NLRB, such policies can be interpreted as an unfair practice interfering with employees' rights to unionize.

At-will disclaimers. In other recent guidance from the NLRB's General Counsel, employment at-will disclaimers contained in employee handbooks were scrutinized. The NLRB will examine such disclaimers on a case-by-case basis in order to determine whether they can reasonably be interpreted to restrict an employee's Section 7 right to engage in protected concerted activity to change his or her employment at-will status in the future. Most disclaimers state that an employee's at-will status may only be changed via a written agreement signed by both the employee and an authorized company representative, and this does not run afoul of the employee's Section 7 right. However, disclaimers that do not provide for the "signed agreement" exception to at-will status may violate Section 7.

Drug-free workplace policies. For those companies with employees in states where medical marijuana use has been legalized, revisiting the drug policy in order to account for this development may be necessary.

Given the ever-evolving employment law landscape, it is no wonder that many refer to an employee handbook as a living, breathing document. Indeed, it is. The labor and employment attorneys at Coolidge Wall are here to help. For assistance or questions, please contact Allison Michael at (937) 449-5786 or [email protected] Also, a listing of all Coolidge Wall attorneys can be found on the Coolidge Wall website at http://www.coollaw.com.